Video Captures Bicycle, Taxi Crash; Lawsuit Filed

A lawsuit has been filed against a taxi cab company and its driver for causing a crash that seriously injured a Chicago man as he rode his bicycle in Bucktown.  Our law firm represents the cyclist.

The 34 year old man sustained a skull fracture and bleeding into his brain from the crash.  He spent six days in Advocate Illinois Masonic Medical Center before being released into his family's care.  He continues to undergo treatment for a brain injury.  He was wearing a helmet at the time of the crash.

The incident occurred at the intersection of North Damen Avenue and West Fullerton Avenue at 11:47 p.m. on November 8th.  The cyclist was riding from his parent's home to his apartment traveling north on Damen in a bicycle lane.  He was riding with operating front and rear lights on his bike.  At Damen's intersection with Fullerton the driver of a white 2011 Ford Escape taxi, also northbound on Damen, turned right without signaling onto Fullerton directly into the bicyclist's path.  The driver's sudden maneuver caused the cyclist to strike the passenger side of the vehicle.  The cyclist hit his head and was rendered unconscious at the scene. The driver immediately pulled over and three passengers rushed from the taxi to the downed man's aid and called 911.

The Illinois Traffic Crash Report pertaining to the incident reflects a very different version of events.  It states that the bicyclist, "was NB [northbound] on Damen and disregarded traffic signal and collided with [taxi] which was EB [eastbound] on Fullerton."  See below.  (The report confuses Unit 1 and Unit 2.  But it seems to communicate the reporting officer's understanding that the bicyclist caused the crash by running a red light.)

Narrative portion of Illinois Traffic Crash Report

Concerned, I spoke with the people who were riding in the cab at the time of the crash.  They told me that the crash occurred just as the driver was making a right turn.  They told me that the Crash Report did not accurately reflect what they told the police at the scene.

Hoping to uncover more solid evidence regarding how the crash occurred, we sent a Freedom of Information Act request to the Chicago Department of Transportation requesting video from the red light cameras in the intersection.  One of the cameras recorded the crash.  The video, taken by a camera looking south on Damen, shows the white taxi (a small SUV) proceeding north on Damen.  The light at Fullerton is green and when it reaches the intersection, it turns right.  Just as it does the blinking white light on the front of the bicycle is seen going down to the street.  The taxi driver immediately pulls over to the curb on Fullerton. See below.

We do not know who the source was for the narrative contained in the Crash Report.  However, the red light camera video contradicts it.  Also, the taxi passengers told me that on the night of the crash they were traveling from Big Star, a Wicker Park restaurant located at 1531 North Damen, to Wrigleyville.  It would certainly make sense for them to have traveled north on Damen to Fullerton, then east.

What the video shows is a classic "right hook" crash, one of the most common types of collisions between motor vehicles and bicycles in an urban setting.  We have alleged that by turning right in front of a person riding a bike, that the cab driver violated several portions of the Illinois Vehicle Code, including the section that requires drivers to give cyclists three feet of space when passing.  We have also alleged that the driver violated numerous sections of the Municipal Code of Chicago, including 9-16-020(d), which explicitly prohibits drivers from turning right in front of a bicyclist when it is not safe to do so.

The Unseeing Eyes Of Motorists

Motorist need to get something straight: I didn't see Mr. or Ms. bicyclist, is not a defense. It is an indictment. This week we will file a lawsuit against a motorist that struck a bicyclist on West Montrose Avenue, near Homer Park, in Chicago in October, 2009. I am anticipating a justification I've heard before, the old "unseeing eye" defense. It is often raised in intersection cases and it goes little something like this: The motorist asserts that he or she entered the intersection while carefully looking in all directions before beginning to turn. No bicyclists were seen. As the motorist executes his or her turn, however, the bicyclist materialized, seemingly out of nowhere. The defense asserts that the collision itself notwithstanding, the motorist was careful, not negligent and, therefore, should not be held responsible for the bicyclist's injuries. This was just one of those things. . .

In our client's case, he was approaching a T-intersection created by Montrose and a driveway at Homer Park when he was struck by a motorist turning left into the park from the opposite side of Montrose. Section 9-16-020(e) of Chicago's municipal code gives the bicyclist the right-of-way over a left turning vehicle coming from the opposite direction. Yet, the putative defendant has been incredulous at the notion that she is responsible. She apparently told a witness at the scene that she never saw our client. She stated to the bicyclist in a subsequent voice mail message, "I'm sorry, but I don't believe I'm at fault... Best advice I can give you is 'be more careful'." Evidently, she is of the opinion that since she never saw our client on his bicycle -- she looked but did not see -- she should not be held responsible for the damage she caused. Nonsense.

Long ago, Illinois courts recognized the impotence of claiming to have looked but not seen. In 1965, the Appellate Court of Illinois, Second District, stated,

"It is well settled that one may not look with an unseeing eye and be absolved of the charge of negligence by asserting that he maintained a continuous lookout, yet failed to see that which he clearly should have seen."

Payne v. Kingsley, 59 Ill.App.2d 245 (2nd Dist. 1965)

Often in my experience the reason offered by the motorist for having not seen the bicyclist is no justification. Traffic was blocking my vision. The sun was in my eyes. My van's support beam obscured my vision. Lame, and of no legal consequence. Folks, when you are operating a motor vehicle you must be able to see where you are going. You must be able to visualize all potential areas from which bikes, cars, pedestrians, motorcycles, etc. may emerge. If you cannot, then you may not proceed.

What To Do After A Bicycle Accident

You've crashed; now what? Many times, the cyclist who has just been in an accident cannot quite process what has happened. You may find yourself asking, Did that just happen? Am I hurt? What should I do? The first thing you should do is remove yourself from any additional danger. Get out of the road, move your bike to safety, sit down, try to control your breathing and calm down. You may literally be shaking, your breathing maybe rapid and your heart may feel like will thump right out of your chest. That is pretty normal after experiencing even minor trauma. After a short time you should do the following:

Notify - Pull out your mobile phone (you'd be nuts to go biking without one), dial 911 and request both an ambulance and the police. Do this even if you are not sure if you are hurt or think that you have only minor injuries. Right now your adrenalin is pumping and your body maybe masking symptoms of a serious injury. Play it safe. Don't forget to tell the 911 operator where you are to the best of your ability and provide your mobile phone number. If the paramedics have a hard time locating you, the dispatcher may call you back. Do not turn away medical care offered by paramedics and let them take you to the hospital. If your injuries turn out to be minor, you won't be there too long. If the police ask you if you wish to make a report your answer should be an emphatic "yes." If your injuries are severe and you cannot make a report at the scene, go to the police department and make a report as soon as you are able to do so.

Gather - After gathering yourself, and your bike, it's time to gather as much information at the scene as possible. While you have your mobile phone out, click a few photos of whatever it was that caused your crash, e.g. the driver's vehicle and license plate, the road hazard, the broken bicycle component, etc. If there are people around you, ask if anyone saw the accident. If so, get their name and telephone number. If you were struck by a motor vehicle ask the driver for his or her name, address and telephone number. Ask to see a driver's license and insurance card.

Shortly after being involved in bicycle accident you may be contacted by a representative of an insurance company who will ask you to give a recorded statement. Questioning will focus on how the accident happened and the nature and extent of your injuries. This is most likely to occur where you have been hit by a motor vehicle. You may even be contacted, in person or via telephone, while you are still in the hospital. Do not give a statement until you have sought legal advice. Why? Because you need time to recover physically and collect your thoughts before making a statement to which you will be bound later. You may not at that point even fully appreciate the full extend of your injuries or the care and treatment that you will need. There is no good reason not to wait before giving a statement. The driver's insurance company may even make a quick offer to settle your claim and ask that you, in return, sign a document releasing its insured from further liability. Do not do it without seeking legal advice. Again, there is no good reason not to wait until after you can fully appreciate what happened and what the repercussions are or will be. The driver's insurer will want to take it fast to resolve the claim quickly for as little as possible. You take it slow.

Talk to a lawyer - Speak with an attorney even if you believe your injuries are minor. It should be noted that following a cycling accident you may not be best served by seeking legal advice from Uncle Bernie who handles bankruptcy cases. Seek advice from a personal injury lawyer, preferably one with experience handling bicycle accident cases. The initial consultation with an attorney should not cost anything. If the attorney decides to take your case, he or she will -- or should -- only receive a fee when and if the case resolves in your favor. This is called a contingency fee agreement. A lawyer is most likely to agree to represent you when your injuries are severe, with significant medical bills. Again though, call a lawyer even if your injuries seem minor. When I've received such calls I spend time offering guidance on how I think the victim should proceed, then recommend that he or she negotiate with the driver's insurer on their own. There may be no point in an attorney taking a piece of the pie in a claim that can be resolved quickly and easily for a relatively small sum of money.

Compensation - Many people ask me what kind of compensation they are entitled to following a bicycle accident. The money "damages" to which you will be entitled include reimbursement for:

• Medical bills;
• Lost wages;
• Cost to have your bicycle repaired;
• Pain and suffering (both past and future);
• Loss of a normal life; and
  
• Disfigurement.

If your injuries are permanent and profound, or you are killed, your family, i.e. your spouse and children, are entitled to compensation for:

• Loss of financial support that you would have provided to them; and
• Loss of consortium/society; that is their loss of the love, guidance and services you would have provided to them.

Ninety-nine times out of a hundred, monetary compensation is paid by the at fault person's, or entity's, insurer rather than out-of-pocket.

Litigation - Sometimes it is necessary to file a lawsuit in order to wrest fair compensation from the at fault person's or entity's insurance company. Generally, this occurs where the insurer believes that its insured is not at fault based on the facts, or where there is strong disagreement over the amount of compensation that the injured bicyclist should receive. It can also occur where the at fault person has "substandard insurance," coverage from a crumby insurance company that tends to litigant every case in order to delay payment for as long as possible. Depending upon the type of accident at issue, the attorney will take differing steps in his or her investigation. If the accident involved a motor vehicle, an accident reconstruction expert may be retained. If the crash was caused by a defect or hazard in the roadway, a different sort of expert may be consulted. In a product liability case, involving failure of a bicycle component, an engineer or metallurgist will probably need to be retained. Most bicycle accident cases, however, do not require retention of experts. A thorough and aggressive investigation of the facts by the law firm will suffice. In all cases, the cyclist's medical bills and records will be obtained from care providers. After the lawsuit is drafted, filed and served on the defendant(s), your attorney and the defendant's attorney will trade written questionnaires called interrogatories, request production of relevant documents, photos and other materials, and interview all those involved in the matter, including parties, witnesses, physicians and experts, in a deposition. After that, the matter will proceed to trial if a settlement agreement cannot be reached. The vast majority of cases filed settle without going to trial, but trials certainly do occur. It is important to make sure you hire an experienced trial lawyer just in case.

Criminal prosecution - In bicycle accidents involving a motor vehicle, the driver will often receive a traffic citation and will need to appear in court to defend himself or herself. What happens in the traffic or criminal case will have little if any bearing on what occurs in a civil lawsuit. In fact, I have successfully resolved bicycle accident personal injury cases in which the at fault driver was found not guilty of violating the motor vehicle code.

Every case is different and will be resolved on its specific facts. If you have any questions that have not been sufficiently answered in this post feel free to contact me directly or post a comment.